Texas Concedes Legal Challenge to Same-Sex Marriage Ban

In light of the U.S. Supreme Court's ruling on Friday, the Texas attorney general's office conceded a separate legal challenge to the state's ban on same-sex marriage. A federal appeals court then affirmed a lower court's ruling that overturned the state's ban.

The U.S. 5th Circuit Court of Appeals building in New Orleans.
Alexa Ura

Editor's note: This story has been updated throughout.

In light of the Supreme Court's ruling on Friday that same-sex marriage is protected by the U.S. Constitution, the Texas attorney general's office has conceded a separate legal challenge to the state's ban on same-sex marriage. That challenge had been left pending in federal appeals court until Wednesday.

The Supreme Court's ruling legalized same-sex marriage nationwide when it decided four cases out of a Cincinnati-based court. But a separate legal challenge to Texas' ban, brought by two same-sex couples, had not been decided by the U.S. 5th Circuit Court of Appeals when the high court ruled.

The 5th Circuit should affirm a lower court ruling that overturned Texas' long-standing ban on same-sex marriage, Scott Keller, the state's solicitor general, wrote in a letter to the appellate court. That letter was in response to the appellate court's request that the state and the plaintiffs advise the court on the next steps in the Texas case.

Citing the Supreme Court's ruling, a three-judge panel of the 5th Circuit then affirmed a lower court ruling that the state's ban is unconstitutional.

Same-sex marriage "is the law of the land and, consequently, the law of this circuit and should not be taken lightly by actors within the jurisdiction of this court," wrote circuit Judge Jerry E. Smith, adding that the Supreme Court ruling also required the state to recognize same-sex marriages performed in other states.

The three-judge panel of the 5th Circuit took up the case in January, signaling significant doubt about the constitutionality of Texas' ban. That hearing was held almost a year after U.S. District Judge Orlando L. Garcia of San Antonio ruled the state's ban unconstitutional because it “violates plaintiffs’ equal protection and due process rights.”

Anticipating an appeal, Garcia stayed his ruling, leaving the ban in place while the state appealed the case to the 5th Circuit. In light of the Supreme Court's ruling on Friday, Garcia lifted his stay to allow his ruling striking down the ban to go into effect.

Though it was clear that the Supreme Court would have the final word on the matter, the parties in the Texas case had hoped the 5th Circuit would still rule on their case.

But after the high court legalized same-sex marriage, the attorney for the Texas same-sex couples, Neel Lane, asked the 5th Circuit to affirm Garcia's ruling and direct him to wrap up the case.

In a letter to the court, Lane wrote that Garcia's final judgment should prohibit the state from enforcing the state statute that banned same-sex marriage, any related provisions in the Texas Family Code, and "any other laws or regulations prohibiting a person from marrying another person of the same sex or recognizing same-sex marriage."

Additionally, Lane asked that the courts "take any and all steps necessary to enforce" that final judgment.

In siding with the same-sex couples, the 5th Circuit directed Garcia to enter his final judgment on the case by July 17.

Though they've lost the fight against same-sex marriage, Republicans have proclaimed that the state’s next battlefront would be in defense of religious liberty.

In its opinion, the 5th Circuit highlighted how the Supreme Court's ruling mentioned the intersection of same-sex couples' rights and religious freedom, but the appeals court did not direct the state on how to handle any conflicts that may result from that.

"We express no view on how controversies involving the intersection of these rights should be resolved but instead leave that to the robust operation of our system of laws and the good faith of those who are impacted by them," the panel wrote.

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